Challenges to addressing allegations during Sri Lanka’s armed conflict

A political commentator has attributed the UK sanctions against four individuals, three of whom were top ranking Army and Navy Officers associated with Sri Lanka’s armed conflict, to the failure of successive governments to address human rights allegations, which he describes as a self-inflicted crisis. The reason for such international action is the consistent failure of governments to conduct independent and credible inquiries into allegations of war crimes; no ‘effective investigative mechanism’ has been established to examine the conduct of either the Sri Lankan military or the LTTE.

He has not elaborated on what constitutes an “effective investigative mechanism. He has an obligation and responsibility to present the framework of such a mechanism. The hard reality however is that no country, not even South Africa, has crafted an effective investigative mechanism to address post conflict issues.

INVESTIGATIVE MECHANISMS

The hallmark of a credible investigative mechanism should be unravelling the TRUTH. No country has ventured to propose how such a Mechanism should be structured and what its mandate should be. Furthermore, despite the fact that no country has succeeded in setting up a credible truth-seeking mechanism, the incumbent government continues to be committed to explore “the contours of a strong truth and reconciliation framework” undaunted by the failed experiences of others, the most prominent being South Africa’s Truth and Reconciliation Commission.

South Africa’s Truth and Reconciliation Commission is often cited as the gold standard for post conflict Mechanisms. Consequently, most titles incorporate the word “Truth” notwithstanding the fact that establishing the “Truth” was a failure not only in South Africa but also in most countries that attempted such exercises.

Citing the South African experience, Prof. G. L. Peiris states: “pride of place was given to sincere truth-telling which would overcome hatred and the primordial instinct for revenge. The vehicle for this was amnesty…… Despite the personal intervention of Mandela, former State President P. W. Botha was adamant in his refusal to appear before the Commission, which he deemed as ‘a fierce unforgiving assault’ on Afrikaaners” (The Island, 01 April, 2025). In the case of Sri Lanka too, disclosures to find the “Truth” would be all about the other party to the conflict, thus making Truth seeking an accusatory process, instead of a commitment to finding the Truth. The reluctance to engage in frank disclosure is compounded by the fear of recrimination by those affected by the Truth.

Continuing Prof. Peiris cites experiences in other countries. “Argentina, the power to grant amnesty was withheld from the Commission. In Columbia, disclosure resulted not in total exoneration, but in mitigating sentences. In Chile, prosecutions were feasible only after a prolonged interval since the dismantling of Augusta Pinochet’s dictatorship ….” (Ibid).

The mechanisms adopted by the countries cited above reflect their own social and cultural values. Therefore, Sri Lanka too has to craft mechanisms in keeping with its own civilisational values of restorative and not retributive justice for true reconciliation, as declared by President J. R, Jayewardene in San Francisco as to what the global attitude should be towards Japan at the conclusion of World War II. Since the several Presidential Commissions appointed under governments already embody records of alleged violations committed, the information in these commission reports should be the foundation of the archival records on which the edifice of reconciliation should be built.

ESTABLISHING DUE CONTEXT

The suggestion that an independent and credible inquiry be conducted into allegations of war crimes reflects a skewed understanding of the actual context in which the armed conflict in Sri Lanka occurred. Even the UNHRC has acknowledged that the provisions of “Article 3 common to the four Geneva Conventions relating to conflicts not of an international character is applicable to the situation in Sri Lanka, as stated in para. 182 of the OISL Report by the UNHRC Office. Therefore, the correct context is International Humanitarian Law with appropriate derogations of Human Rights law during an officially declared Emergency as per the ICCPR.; a fact acknowledged in the OISL report.

Consequently, the armed conflict has to conform to provisions of Additional Protocol II of 1977, because “This Protocol, which develops and supplements Article 3 common to the Geneva Conventions is the due context. There is no provision for “alleged war crimes” in the Additional Protocol. Although Sri Lanka has not formally ratified Additional Protocol II, the Protocol is today accepted by the Community of Nations as Customary Law. On the other hand, “war crimes” are listed in the Rome Statute; a Statute that Sri Lanka has NOT ratified and not recognized as part of Customary Law.

Therefore, any “investigative mechanism” has to be conducted within the context cited above, which is Additional Protocol II of 1977.

SRI LANKAN EXPERIENCE

On the other hand, why would there be a need for Sri Lanka to engage in an independent and credible inquiry into allegations, considering the following comment in Paragraph 9.4 and other Paragraphs of the Lessons Learnt and Reconciliation Commission (LLRC)?

“In evaluating the Sri Lankan experience in the context of allegations of violations of IHL (International Humanitarian Law), the Commission is satisfied that the military strategy that was adopted to secure the LTTE held areas was one that was carefully conceived in which the protection of the civilian population was given the highest priority”

9.7 “Having reached the above conclusion, it is also incumbent on the Commission to consider the question, while there is no deliberate targeting of civilians by the Security Forces, whether the action of the Security Forces of returning fire into the NFZs was excessive in the context of the Principle of Proportionality…” (Ibid)

The single most significant factor that contributed to violations was the taking of Civilians in the N Fire Zone hostage (NFZ) by the LTTE. This deliberate act where distinction between civilian and combatant was deliberately abandoned, exposed and compromised the security of the Civilians. The consequences of this single act prevent addressing whether military responses were proportionate or excessive, or whether the impact of firing at make-shift hospitals were deliberate or not, and whether limiting humanitarian aid was intentional or not. These issues are recorded and addressed in the Presidential Commission Reports such as LLRC and Paranagama. This material should be treated as archival material on which to build an effective framework to foster reconciliation.

UK SANCTIONS

Sanctions imposed by the UK government as part of an election pledge for Human Rights violations during the armed conflict is a direct act of intervention according to Article 3 of the Additional Protocol of 1977 that is the acknowledged context in which actions should be judged.

Article 3 Non-intervention states:

1 “Nothing in the Protocol shall be invoked for the purpose of affecting the sovereignty of a State or the responsibility of the government by all legislative means, to maintain or re-establish law and order in the State or to defend the national unity and territorial integrity of the State”.

2 “Nothing in the Protocol shall be invoked as a justification for intervening directly or indirectly, for any reason whatsoever, in the armed conflict or in the internal or external affairs of the High Contracting Party in the territory on which the conflict occurs”.

Targeting specific individuals associated with the armed conflict in Sri Lanka is a direct assault of intervention in the internal affairs of Sri Lanka. The UK government should be ashamed for resorting to violating International Law for the sake of fulfilling an election pledge. If Sri Lanka had issued strictures on the UK government for not taking action against any military officers responsible for the Bloody Sunday massacre where 26 unarmed civilians participating in a protest march were shot in broad daylight, Sri Lanka would, in fact be intervening in UK’s internal affairs.

CONCLUSION

The UK’s action reflects the common practice of making election pledges to garner targeted votes of ethnic diasporas. The influence of ethnic diasporas affecting the conduct of mainstream politics is becoming increasingly visible, the most recent being the Tamil Genocide Education Week Act of Ontario that was dismissed by the Supreme Court of Canada on grounds the Provincial Legislations have no jurisdiction over Federal and International Laws.

However, what should not be overlooked is that the armed conflict occurred under provisions of common Article 3 of the Geneva Conventions. This Article is developed and supplemented by Additional Protocol II of 1977. Therefore, since all Geneva Conventions are recognised as Customary Law, so should the Additional Protocol II be, because it is a development of common Article 3.

Imposing sanctions under provisions of Additional Protocol II amounts to Intervention in internal affairs of a State as stated in Article 3 of the Protocol; II cited above. Such interventions are prohibited under provisions of international law.

The need to revive independent and credible inquiries after the lapse of 16 years is unrealistic because those who were perpetrators and victims alike cannot be identified and/or located. Furthermore, the cost of disclosure because of the possibility of retribution would compromise their security. A realistic approach is to use the material recorded in the Presidential Commission Reports and treat them as archival records and use the lessons learnt from them to forge a workable framework that would foster unity and reconciliation with the survivors in all communities This is not to live in the past but to live in the here and now – the present, which incidentally, is the bedrock of Sri Lanka’s civilisational values.

by Neville Ladduwahetty